Session F329 Navigating the ADA: Roles and Responsibilities of the PA Educator

Cody Sasek, MPAS, PA-C University of Nebraska Medical Center

Objectives

At the conclusion of the session, the participant will be able to: • Describe the current legal climate in academia as

related to the Americans with Disabilities Act. • Identify best practices for the management of

students with potential learning disabilities including anxiety and emotional difficulties.

• Recognize responsibilities of programs and faculty in navigating the ADA and other related student issues.

Disclaimer

• This in not intended to be specific legal advice

• I am not a lawyer • When specific questions are involved: – “It depends…” – Consult with legal counsel • Sooner rather than later

Where are we?

• Current legal state of higher education – More litigious – Increased expectations of stakeholders – Greater political savvy of parents and

students – Changes in education environment – Questions of educational policy have often

become legal questions

Americans with Disabilities Act

• Established in 1990; Amended in 2009 • In concert with Section 504 of the

Rehabilitation Act of 1974 • Prohibits discrimination against individuals

with disabilities • Requires “reasonable accommodations”

for “qualified individuals” with disabilities • Applies to all institutions/programs

receiving federal funding

Americans with Disabilities Act

“reasonable accommodations” for “qualified individuals”

ADA Amendments Act

• Amendments note students need not prove disability, only that institution regarded them as disabled

• Amendments dictate that courts have: – No consideration for mitigating measures

• Medications, prostheses, etc. – Less focus on whether “disability” exists – lower

hurdle – Greater focus on whether student was qualified,

with or without accommodation, and whether the accommodation was “reasonable”

“Qualified Students”

– Definition of both ADA and Section 504 are the essentially the same: • “a physical or mental impairment that substantially

limit one or more of the major life activities”; or, • “a record of impairment”; or, • “being regarded as having such an impairment”.

– Determined on an individual basis – The amendments of 2009 have:

– Broadened the definition of “disability” – Changed much of the previous case law

Disability Defined

• A broadened definition: – Major Life Activities include, but are not limited to,

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

– Major Bodily Functions include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

• Significance of limitation based on comparison to average person.

“Qualified Students”

– One who “meets the academic and technical standards requisite to admissions or participation” with or without reasonable accommodations. • If students cannot meet standards, even with

accommodation, they are not protected by ADA or Section 504.

– The institution is allowed to: • Inquire into the disability • Require documentation • Reach its own determination as to whether it is a

disability that requires accommodation under the ADA

“Reasonable Accommodations”

• How is “reasonable” determined? • Nature and cost of accommodations • Proportionate financial and operational cost • Overall financial resources of the entity • Type of operation(s) of the entity

• Potential accommodations include: • Format of tests • Providing additional testing time • Providing readers or aides to help with examinations • Changing minor aspects of the course • Accommodations for licensing exams

Zukle v. Regents of the University of California 166 F.3d 1041 (9th Cir. 1999)

• A medical student with documented learning disabilities – Had received numerous accommodations – Could still not meet school’s academic

standards – Sought lengthened time to complete degree

• Not protected under ADA or Section 504 – Court ruled lengthening time to degree would

lower academic standards

ADA and Substance Abuse

• Excludes current substance abusers • Does protect recovering abusers and those

in treatment programs • Alcoholics are protected, even if abuse is

current • Law does not require nor prohibit drug

testing

ADA and Mental IllnessBurbella v. Misericordia University et al.

• Nursing student with anxiety, depression, poor concentration – Sought help from school psychologist in 2011

• Failed a core curriculum class in 2014 – Student agreed to retake course with

accommodations • Extended time, quiet room • Professor agreed to answer questions during exams

ADA and Mental IllnessBurbella v. Misericordia University et al.

• During final exam, wanted to ask professor questions – Prior to exam given a cell phone number – Professor was in another room and didn’t answer – Plaintiff alleges that created a more stressful

environment • Failed the exam, and course, for a second time

Did the school meet the standard of reasonable accommodations?

Doe v. Board of Regents of the University of Nebraska

809 N.W.2d 263 (2012) 283 Neb. 303

• A medical student with MDD diagnosis – Qualifying as disabled under ADA and Rehab Act – Only reported disability retroactively

• Granted a leave of absence in order to receive treatment for depression, insomnia, and anxiety

• Signed contract reiterating conditions of continued enrollment

• Upon return, poor performance continued, with additional professionalism issues

• He was eventually removed from the medical school

Doe v. Board of Regents of the University of Nebraska

809 N.W.2d 263 (2012) 283 Neb. 303

• Questions for the Court: – Disability?

• Interference with major life activity (learning)? • Properly documented?

– What relief, if any, should be sought?

• The court determined: – Faculty acting in official capacities were released from suit – No disability had been documented appropriately – He was not “otherwise qualified” with or without accommodations – The institution has the ability to make judgments regarding academic

matters – No accommodation available would have avoided dismissal – Retroactive disability claim was not sufficient

• If the institution didn’t know, it couldn’t be expected to act • No proposed accommodation would have changed dismissal

ADA and Admissions

• Section 504/ADA prohibits discrimination on basis of disability in admissions and recruiting

• Specific prohibition on: – Limits on number of individuals with disabilities

who may be admitted – Use of admissions criteria or test that have a

“disproportionate, adverse effect” • Unless it validly predicts success and no alternative is

available – Any preadmission inquiry in to disability status

• After admission, a confidential inquiry is allowable to prepare for potentially needed accommodations

ADA and Admissions

• Can disability have any role in admission?

– A disabled person is qualified if he/she meets requisite academic and technical standards • A student is qualified in spite of (rather than except

for) his/her disability

– Applicants who do not meet academic or technical standards can be denied admission • Prohibits denying admission on basis of disability alone

– Physical disabilities, but what about learning?

Southwestern Community College v. Davis 442 U.S. 397 (1979)

• Nursing student denied admission because she was deaf sued with Section 504 claim

• Supreme Court found: – Applicant’s disability can be relevant to

qualification for specific program • “reasonable physical qualifications”

– Applicant’s inability to meet specific and reasonable “technical standards” was legitimate grounds for rejection

Southwestern Community College v. Davis 442 U.S. 397 (1979)

• Davis was narrow and specific for professional, clinical programs – Demands of training and practice of the

profession raise “far different considerations”

• Court approved imposition of “reasonable physical qualifications” – Only for requirements justifiable as necessary

for successful participation in the program and/or patient safety

Important Concepts for PA Faculty

• Academic Deference • Personal Liability • Professional Responsibility • Relation to ARC-PA Standards

Academic Deference

• Apply to: – Decisions based upon the expertise of the

institution and its faculty – Faculty “professional judgment” – “When judges are asked to review the substance of

a genuinely academic decision…, they should show great respect to the faculty’s professional judgment.”1

– “Disputes concerning academic decisions made by public institutions of learning present no justiciable controversy.”2

• But: – Applies to purely academic decisions

Academic Deference vs. Required Accommodations

Academic Standards

Required Accommodations

Relation to ARC-PA Standards

• Standard A3.09 states that "principal faculty, the program director and the medical director must not participate as health care providers for students in the program, except in an emergency situation."

• Refer to designated officials and experts for evaluation and disposition

NCCPA Testing Accommodations

How do we protect students and our programs?

• Consult with legal counsel • Establish procedures and policies • Include and get support of administration • Make students aware of resources and

their responsibilities • Ensure clear communication

Faculty Member Best Practice

• Insure decisions are not arbitrary, capricious, irrational, made in bad faith or contrary to the Constitution or statute

• Demonstrate careful consideration of student specific issues, accommodation options, and academic requirements

• Defer to disability coordinators for evaluation and documentation of disability

• As best possible, BE CONSISTENT! – Faculty generally protected when acting

appropriately and in scope as an educator

Program Best Practices

Institutions should consider all potential accommodations for students with disabilities: – Courts tend to defer to academic decisions – Institutions typically held strictly to procedural

codes – Institutions should demonstrate careful

consideration of request for accommodations – Decisions based on academic grounds that

accommodations were either unnecessary or unsuitable

“The law has arrived on campus. Sometimes it has been a beacon, at other times a blanket of fog. It has come noisily and sometimes has stumbled. And even in its imperfections, the law has spoken forcefully and meaningfully to the higher education community and will continue to do so.” - Kaplin and Lee’s The Law of Higher Education, First Edition